State considers controls on steep slope construction

Local governments balking at controlling development on steep mountainsides would be forced into action if the General Assembly passes a state bill introduced earlier this month.

Under the Safe Artificial Slope Construction Act, regulations would kick in for construction on 25 percent or greater slopes, or areas that have been given a slide-hazard ranking of “moderate” or “high” by the North Carolina Geological Survey.

The Geological Survey launched a landslide risk analysis in Western North Carolina after the remnants of hurricanes Ivan and Frances triggered slides, including one in the Peeks Creek area of Macon County in 2004 that killed five people and demolished more than a dozen houses. A year earlier, a Maggie Valley woman was crushed to death after a smaller landslide crushed her home.

The proposed regulations include a mandatory geotechnical analysis and would also require real estate professionals to tell potential buyers if a house or lot was in a slide-prone area. The bill also would place a ban on using woody debris such as stumps and logs in fill dirt, which can trigger instability as they rot.

Timely issue

The proposed state law comes as municipalities and county governments wrestle with how to balance safety with the economic boost of development. Haywood County, Asheville, Brevard and Boone all have steep slope regulations, with Asheville currently debating whether to strengthen or weaken its rules.

Elsewhere in the region, Jackson County is at work on a proposed subdivision and steep-slope ordinance.

Commissioner Tom Massie said Jackson County is looking at more stringent regulations than the proposed state law would impose, specifically construction on the high mountaintops.

“Building on ridges continues to be a concern in Jackson County,” Massie said.

The state steep slope law, if approved, would represent the first statewide mountain development statute since the Ridge Protection Act became law 24 years ago. Public outcry over high-rise development on Sugar Top Mountain in Avery County sparked that political response by the General Assembly.

Massie said Jackson County’s law might regulate ridge building to a greater degree than the state, which limits building heights to 40 feet on ridges at or about 3,000 feet in elevation or those 500 feet or more above an adjacent valley floor.

“We can’t just bury our heads in the sand,” Massie said of Jackson County’s decision to enact its own regulations.

“I do think we need some type of steep-slope law at the state level, but one size doesn’t fit everybody,” he said. “(But) there are local governments that have not chosen to address these issues, and may not choose to.”

Political cover?

In those instances, state action could give local governments lacking fortitude “the political cover to do what they know is necessary,” said D.J. Gerkin, an Asheville-based attorney for the Southern Environmental Law Center.

The law, as written now, would require the state’s sedimentation control commission to assist local governments in developing and implementing safe-slope construction programs. If elected leaders don’t adopt an ordinance that meets the state’s minimal standards, the sedimentation control commission would take over the responsibility instead.

But Gerkin, who emphasized that he is “grateful” that any regulation is being attempted, thinks the state law — sponsored by Rep. Ray Rapp, D-Madison County, Phil Haire, D-Jackson County, and Susan Fisher, D-Buncombe County — doesn’t go far enough. Gerkin listed these concerns:

• An option for citizen suits against offenders has been removed.

• There are no re-vegetation standards.

• Density, or the number and placement of buildings on steep slopes, has not been considered.

“It tries to find a common ground so that we have a standard up and down the ridges for steep-slope construction,” Rapp said when asked to what degree the bill has been compromised by competing interests. Rapp described a series of meetings as shaping the proposed law, including discussions with real estate agents, homebuilders, chamber of commerce representatives, environmentalists and geologists.

“They’ve all had the chance to make their cut of it,” Rapp said. “It’s going to set a minimum standard.”

Finding a balance

Zac Koenig, president of the Jackson County Home Builders Association, said he has mixed feelings about whether the state should get involved. Still, he said if the bill is written correctly, “it can benefit the environment and still be workable.”

Koenig said legislation would mean construction costs increase, but that ensuring safety on steep slopes is worth extra money. What wouldn’t be fair, he said, is if the state got into the business of governing aesthetics, which he believes Jackson County leaders are attempting with their proposed legislation.

“I don’t know that it’s the county’s place to determine what color should be used on a house,” Koenig said. “There needs to be balance.”

Lisa Martin, who works on land-development issues for the North Carolina Home Builders Association, believes the state needs to approach regulation of steep-slope development differently.

She said the association supports a financial appropriation to aid the state’s Geological Survey in mapping hazards. Once the maps are complete, Martin said, a legislative task force should consider whether there are true landslide hazards, and proceed with possible regulations from there.

She said the bill’s emphasis on using soil and slope is off base.

“That’s not a good indicator of slides,” Martin said.

Not everyone in the industry agrees. Highlands developer Bill Nellis described the move to regulate steep slope construction as “common sense.”

The longtime mountain developer said those with little experience in this region don’t comprehend the steep slopes dangers. Nellis said the velocity of water must be understood, and that re-vegetation is vital once an area is disturbed.

The environment and natural resources committee is currently reviewing the state bill. If the response is favorable, the bill moves to a judiciary committee.

Phil Gibson, director of research and community outreach for the environmental leadership center at Warren Wilson College, believes the bill will survive intact. Gibson said there are areas where the law could be stricter, and that he isn’t sure the sedimentation board he once was a member on is prepared for a new role as enforcer of steep slope regulations. But overall, he said the proposed law is a positive step in protecting people from slope movement.

“I don’t regard this as an environmental bill, I regard this as a public health and safety bill,” Gibson said.